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Schundler v. Donovan

May 5, 2005

BRET SCHUNDLER, DIANE SANK, AND BRET2005, PLAINTIFFS-APPELLANTS,
v.
KATHLEEN DONOVAN, BERGEN COUNTY CLERK DEFENDANT-RESPONDENT.
BRET SCHUNDLER, RICHARD BRADFORD, AND BRET2005, PLAINTIFFS-APPELLANTS,
v.
JAMES HOGAN, GLOUCESTER COUNTY CLERK DEFENDANT-RESPONDENT.
FORRESTER FOR GOVERNOR, INC., AND DOUGLAS FORRESTER, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
KATHLEEN DONOVAN, CLERK OF THE COUNTY OF BERGEN, PETER HARVEY, ATTORNEY GENERAL, STATE OF NEW JERSEY, TODD CALIGUIRE, PAUL DIGAETANO, STEVE LONEGAN, JOHN MURPHY, AND ROBERT SCHROEDER, DEFENDANTS-RESPONDENTS, AND BRET SCHUNDLER, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-2891-05 and L-2897-05.

The opinion of the court was delivered by: Kestin, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted May 3, 2005

Before Judges Kestin and Lefelt.

On May 3, 2005, acting upon emergent applications for summary disposition of these appeals involving ballot placement in the June 7, 2005 Republican primary, we entered an order vacating the trial court's order dismissing the complaints. Our order required the county clerks involved to redraw for ballot positions. The order stated:

In the circumstances presented, given the practical limitations of space on a ballot of fixed dimensions as described by the trial court in its written decision of May 2, 2005; and, having considered the arguments advanced by the parties in the light of prevailing rules of law as established by statute, N.J.S.A. 19:23-26.1, and in the judicial opinions cited by the trial court; we ORDER that the Bergen County Clerk and the Gloucester County Clerk redraw for ballot positions in the 2005 Republican primary for governor based on two principles: first and foremost, treating all candidates for governor equally in respect of potential ballot placement; and, second, but only to the extent practicable within the confines of the first principle, accommodating the choices of any candidates for any office in the primary who have expressed timely preferences regarding bracketing.

The procedural background and pertinent facts in these consolidated cases were well-framed by the trial court in its comprehensive opinion; and the spatial limitations facing the county clerks in this primary were fully described. The full text of that opinion follows:

These three matters---two involving the Bergen County Clerk and one involving the Gloucester County Clerk---have been consolidated for disposition and are being regarded as a summary-type proceeding. In accordance with the provisions set forth in N.J.S.A. 19:13-12 the "[j]udge performs his duty as legislative agent in a summary way, but the power granted is not one which the court is required to exercise in every case, and relief which may be justified in given cases between candidates, or between candidates and public officials, may be granted only partly, or denied altogether, when private interests of candidate[s] conflict with overriding public consideration. Murray v. Murray, 7 N.J. Super. 549 (Law Div. 1950). The plaintiffs herein are candidates who seek the Republican Party's nomination in the June election for the respective offices sought. They are: Bret Schundler ("Schundler") for Governor; Douglas Forrester ("Forrester") for Governor; Diane Sank ("Sank") for Freeholder (Bergen County); and Richard Bradford ("Bradford") for Freeholder (Gloucester County). The named defendants are Kathleen Donovan ("Clerk Donovan"), the Bergen County Clerk, and James Hogan ("Clerk Hogan"), the Gloucester County Clerk.

These are common claims involving actions of the clerks respecting the ballot for the June 7 Republican primary election. They assert that the clerks have made erroneous decisions respecting the positioning of various candidates on the ballot. They seek an order of the court that would compel the clerks to have a new drawing for the ballot positions.

The process by which the clerks set up the ballot for the Republican primary election was this: There are seven candidates for the nomination for Governor. Of these, two candidates (Lonegan and DiGaetano) were determined to be "bracketed" with slates of candidates for other offices (freeholder, etc.), and five were viewed as "unbracketed." Schundler was running under the slogan "Bret2005" and had authorized a single candidate running in the two-person freeholder race to use the same slogan; the clerks determined other requirements of the bracketing statute had not been met. And so the Schundler candidacy was deemed "unbracketed" as well.

There were two drawings, one first for the full-slate candidacies of Lonegan and DiGaetano, and a second for the other five candidates. Lonegan drew the first spot in the first draw. In the second draw, the finish was Forrester, Murphy, Schroeder, Schundler, and Caliguire.

The Schundler complaint is that the clerks were overly technical about compliance with the statutory requirements regarding "bracketing" of the non-gubernatorial candidates with the gubernatorial candidate that they say can and should be corrected by court order after the fact.

The Forrester claim is that there ought not be a distinction between bracketed and non-bracketed candidates, since adherence to the two-tier drawing results in the non-bracketed candidates being excluded from having an opportunity to draw for the first slot or column on the ballot and thus is discriminatory.

The drawing occurred April 21 and these applications were filed within a few days of the drawing. At a court session last Wednesday, April 27, to address the setting of a protocol for the resolution of these matters, all counsel appeared and acquiesced in the court's schedule for submissions, responsive papers being submitted by the end of the day on April 28, and ...


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